5.2.4 Proving Ability to Pay

For spousal support claims, the petitioner must also show need and the other spouse’s ability to pay.

Need. An award of interim spousal support requires that the requesting spouse demonstrate need.1  Need can be shown by proving that the petitioner lacks sufficient income to maintain the standard of living that she enjoyed while residing with her spouse.2  To prove a support claim, then, the client must demonstrate her need through evidence of her income, her expenses, and her previous standard of living. “Standard of living” evidence can include testimony about the number of bedrooms in the marital home or the frequency with which the parties dined out as well as other information about the parties’ lifestyle. But if an abusive former partner intentionally deprived a dependent spouse of basic needs or a comfortable standard of living during the marriage, he cannot avoid a support obligation by arguing that she must continue living similarly.3  In most jurisdictions, the parties must prepare and submit an income and expense form in advance of court to assist the court’s determination on the petitioner’s need.

Ability to pay. The only limit on a claimant’s needs is the obligor party’s ability to pay.4  An obligor spouse has the ability to pay when his income exceeds his expenses and child support obligations.5  When the obligor does not have the ability to pay an award equal to the other partner’s needs, “interim spousal support should be fixed at a sum that will as nearly as possible be just and fair to all parties involved.”6

Support claims against defendants with limited income or resources. Do not decline to request support from an abusive defendant simply because he earns low wages. If your client’s household resources are even lower, she may still be entitled to support. The law governing temporary spousal support aims to put both parties as close as possible to the standard of living they enjoyed before the separation.7  In cases where neither party has substantial income or assets, it is useful to examine the parties’ relative financial positions. Do this by comparing their respective incomes to the federal poverty level, and then calculate how far above or below the poverty level each person’s income puts them. The court can make an award that is just and fair between two parties by awarding support in an amount that puts them at equal footing above or below the poverty level. This analysis can be particularly compelling in cases where the claimant spouse is a custodial parent whose standard of living will affect the child.

Fault. Fault is not a defense to temporary spousal support.8  Abusive partners will sometimes claim infidelity as “fault” grounds to avoid paying support.9

Reconciliation. Reconciliation applies only to actions brought in divorce. It has no effect on child support claims brought between two people who have never been married or spousal support claims between who have not filed for divorce.10  Thus, in a protective order case where support is awarded, a subsequent reconciliation has no bearing on whether support is owed for the period of reconciliation.

• 1For additional discussion, see Section 7 of the chapter on family law.
• 2Robertson v. Robertson, 10-CA-926 (La. App. 5 Cir. 4/26/11), 64 So. 3d 354 (denying husband’s request for spousal support where his request had no merit because he did not submit proof of expenses, that he was living in his father’s home without cost, and failed to prove he could not find work); Carmouche v. Carmouche, 03-CA-1106 (La. App. 5 Cir. 2/23/04), 869 So. 2d 224, 227 (upholding interim spousal support where claimant’s expenses exceeded her income even on “nominal, bare subsistence living expenses”).
• 3Brown v. Brown, 44-989-CA, p. 9 (La. App. 2 Cir. 1/27/10), 31 So. 3d 532, 538 (awarding support after finding that living conditions during the marriage were deplorable but that those living conditions alone are not indicative of the standard of living during the marriage).
• 4Kirkpatrick v. Kirkpatrick, 41,851-CA, p. 3 (La. App. 2 Cir. 1/24/07), 948 So. 2d 390, 393; Hitchens v. Hitchens, 38,339-CA, p. 2 (La. App. 2 Cir. 5/12/04), 873 So. 2d 882, 884. For additional discussion, see Section 7 of the chapter on family law.
• 5Lambert v. Lambert, 2006 2399, pp. 13–14 (La. App. 1 Cir. 3/23/07), 960 So. 2d 921, 930; Rodriguez v. Rodriguez, 2020-0171, p. 7 (La. App. 1 Cir. 11/6/20), 315 So. 3d 913, 919.
• 6Derouen v. Derouen, 04-1137, p. 5 (La. App. 3 Cir. 02/02/05), 893 So. 2d 981, 985; see Charrier v. Charrier, CA 19-917, pp. 11–12 (La. App. 3 Cir. 06/03/2020), 2020 WL 2934636, at *5.
• 7Although the term “temporary support” is used here, it closely resembles interim support in that it is designed to maintain the status quo “without unnecessary economic dislocation.” Short v. Short, 09-639, p. 9 (La. App. 5 Cir. 3/23/10), 33 So. 3d 988, 994. Interim support is a legal term of art specific to a support claim raised in a proceeding for divorce. See La. C.C. art. 111.
• 8For additional discussion, see Section 7.2 of the chapter on family law.
• 9La. C.C. art. 113.
• 10See Stanley v. Nicosia, 09-191, p. 6 (La. App. 5 Cir. 9/29/09), 19 So. 3d 56, 59 (citing McInnis v. McInnis, 38,748 (La. App. 2 Cir. 8/18/04), 880 So. 2d 240) (holding in a protective order case between two unmarried parties that subsequent reconciliation had “no bearing” on whether child support was owed for the period of reconciliation).